50 E AST H URON S TREET , C HICAGO , I LLINOIS 60611 P HONE (312) 280-4226
Judith F. Krug, Executive Director
Vol. 23, No. 2
June Pinnell-Stephens, President
1998
Five Trustees were elected to the Freedom to
Read Foundation Board in the April election:
Charles E. Beard, Carolyn Caywood, Gordon
M. Conable, Charles Levendosky, and Mary
E. (Molly) Raphael. Of these, Conable and
Levendosky were re-elected; Beard, Caywood, and Raphael are new Trustees.
The newly elected Trustees join the following members to form the Freedom to Read
Foundation Board for 1998-99:
Janet Vaill Day
Joel Hirschhorn
Diane M. Hopkins
Candace Morgan
Jane Robbins
Oren J. Teicher
Ex Officio:
Ann K. Symons, ALA President
Sarah Ann Long, ALA President-Elect
Steven Herb, IFC Chair
William R. Gordon, ALA Executive Director
On April 7, 1998, Judge Leonie M. Brinkema of the U.S. District Court for the Eastern
District of Virginia rendered the nation’s first judicial decision addressing the use of filtering software in libraries. In Mainstream Loudoun v. Board of Trustees of Loudoun County
Library, the much-watched constitutional challenge of the restrictive Internet use policy imposed on the public libraries of Loudoun
County, Virginia, the defendant library board had filed a motion to dismiss the lawsuit on various grounds, including a contention that the plaintiffs did not state a valid claim under the First Amendment. Judge Brinkema’s decision rejected the contentions of the library board and shaped some of the issues that may now proceed to a trial before the court.
Judge Brinkema held: one, the First
Amendment constrains any decision by a public library board to impose “contentbased” restrictions on access to Internet speech; and, two, any “content-based” restriction “must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end.”
Providing public Internet access in a library is like including a set of encyclopedias in the collection, the court stated. Use of filtering software is akin to “laboriously redact[ing] portions [of the encyclopedias] deemed unfit for library patrons.” Such a redaction is a
“content-based” restriction on access to the
Internet. The question yet to be answered: Is the restriction narrowly tailored to achieve a compelling governmental interest?
Identifying crucial issues, Judge Brinkema noted: “[P]laintiffs allege that the X-Stop

filtering software chosen by defendants
Freedom to Read Foundation News Volume 23, Number 2 Page 2 library Internet use policy and filtering software “improperly limit adults to even less restricts many publications which are not obscene or pornographic” and, further, they
“allege that the decision as to which materials information than is fit for children, block access to valuable, educational, and to block is made by a California corporation based on secret criteria not disclosed even to defendants, criteria which may or may not bear any relation to legal definitions of obscenity or child pornography.” According to the court, the plaintiffs “adequately alleged a lack of . . . reasonable means” on the part of the defendants to deal with “obscene speech or materials harmful to children.” constitutionally protected information” that has nothing to do with sexually explicit materials, fail to promote purported objectives, and “ignore readily available lessrestrictive alternatives” (see “Internet Filtering
Challenged in Court,” in Freedom to Read
Foundation NEWS , Volume 23, Number 1).
Making formal allegations such as these was an essential first step in the lawsuit. Filing the
The complaint seeks both a judicial declaration that the Internet use policy violates the First and Fourteenth Amendments of the
U.S. Constitution and an injunction to prevent complaint was point A. The court has now ruled, at point B, that the allegations are not insufficient, at least as stated. Between points
A and B, here’s the path:
Late last year, the Board of Trustees of the
Loudoun County Library imposed a “Policy on Internet Sexual Harassment.” The policy, designed to shield women and children from a
“sexually hostile environment,” unconditionally mandated for adult library users, as well as children, use of X-Stop filtering software, marketed to block “hardcore pornography and other offensive sites on the Internet.” In addition, the library board ordered each of the six Loudoun County branch libraries to place their Internet-access computers in full view of staff and authorized librarians to expel anyone caught trying to access prohibited material.
On December 23, 1997, Mainstream Loudoun, a group of parents and other concerned citizens, filed a forty-seven page complaint in the U.S. District Court for the Eastern District of Virginia. Above and beyond the allegations already noted, the complaint asserted that the the library board from enforcing the policy.
On February 2, 1998, the defendants filed the motion that resulted in Judge Brinkema’s determination that the First Amendment applies to the use of filtering software in libraries. The key idea behind the motion, to paraphrase the defendants, had been this: the plaintiffs have made the ridiculous claim that they have “a constitutional right to have publicly financed peep shows in the Loudoun library.”
Attempting to sidestep any claim that use of filtering software on Internet access computers represents a removal of material from the shelves of a library, the defendants tried to paint a picture of the Internet as a kind of electronic interlibrary loan system. They had futilely hoped that such a picture would avoid problems with First Amendment standards that constrain what libraries may remove from their collections, as set forth in the wellknown case of Board of Education, Island
Trees Union Free School District No. 26 v.
Pico.

The defendants asserted on the motion that any individual “who ‘surfs’ the Internet using
Freedom to Read Foundation News Volume 23, Number 2 Page 3
“a variety of sites that express viewpoints contrary to the viewpoints expressed” by the a library Internet-access computer is, in essence, a patron of a vast electronic library. . proposed added plaintiffs.
. . When a patron desires to retrieve a particular publication, the patron simply enters the URL into the selection box on the browser, hits the <ENTER> key and the browser sends the electronic equivalent of an inter-library loan request to the website that houses the requested publication.”
In addition, the defendants asserted that the plaintiffs’ lawsuit is barred by the “Good
Samaritan” provision contained in the
Communications Decency Act. Also, they asserted that the plaintiffs do not have standing or real injuries sufficient for them to maintain the lawsuit.
On February 5, 1998, the American Civil
Liberties Union filed a motion that sought the court’s permission for various Internet publishers to intervene. The motion sought to
On February 24, 1998, the court granted the motion to intervene by the Internet publishers.
Three days later, Judge Brinkema heard oral argument on the other motions.
On April 7, 1998, Judge Brinkema rendered the decision on the dismissal motion, the latest significant development in the lawsuit. The court made it clear that the defendant library board could not sidestep the well-known case of Board of Education, Island Trees Union
Free School District No. 26 v. Pico. Judge
Brinkema relied on that decision and the recent Communications Decency Act (CDA) decision in Reno v. American Civil Liberties
Union, and drew from the plaintiffs’ analogy of the Internet as an encyclopedia.
In addition to denying the defendant’s motion addressed to First Amendment issues, Judge include The Safer Sex Page, the American
Association of University Women Maryland, the Books for Gay and Lesbian Teens/Youth
Page, the Renaissance Transgender
Association, and other similarly identified
Internet publishers as added plaintiffs, pressing their own claims against the defendants.
The added plaintiffs’ complaint alleged that the defendants’ Internet use policy prevents them “from communicating their constitutionally protected speech to patrons in the Loudoun County Library.” The complaint emphasized that the filtering software on the defendants’ Internet access computers is “in effect, ‘removing books from the shelves’ of the Internet.” Significantly, the complaint further alleged that the software did not block
Brinkema also denied that part based on the
“Good Samaritan” provision of the CDA that grants immunity from lawsuits to an
“interactive computer service.” She dismissed several of the plaintiffs whom she found
“lacked standing to sue.”
On April 20, 1998, the defendant library board formally answered the Mainstream Loudoun complaint, as well as the added plaintiffs’ complaint. The answers deny relevant allegations of the respective complaints and, in some cases, state that the defendant does not yet have enough information to form a belief about them. Significantly, the defendant claims that “it is not knowingly filtering any Website [whose contents] are protected by the First Amendment.” The answers raise “affirmative defenses” already

rejected in the April 7, 1998, decision on the
Freedom to Read Foundation News Volume 23, Number 2 Page 4
Intellectual Freedom Round Table, 2:00-4:00 p.m., Washington Hilton & Towers Map dismissal motion and assert that, at most,
“minimal scrutiny,” rather than “strict scrutiny,” should be used to review the defendant’s Internet use policy.
Room
Saturday, June 27
Intellectual Freedom Committee, 8:00 a.m.-
Mainstream Loudoun v. Board of Trustees of
Loudoun County Library addresses
12:30 p.m., Washington Hilton & Towers
Military Room fundamental questions about First
Amendment constraints upon public library
Internet use policies. The lawsuit promises to answer one of the library profession’s basic
Committee on Professional Ethics, 2:00-4:00 p.m., Washington Hilton & Towers Map
Room questions: whether the U.S. Constitution can ever countenance deliberate actions by a public library directly depriving a library user of freely available constitutionally protected
Sunday, June 28
Intellectual Freedom Committee/Committee materials.
The full text of Judge Brinkema’s latest decision is available at http://www.techlaw on Legislation, 8:00-9:00 a.m., Washington
Hilton & Towers Military Room
Intellectual Freedom Comm./Intellectual journal.com/courts/loudon/80407mem.htm.
Freedom Round Table/Div. IFCs, 9:00-10:00 a.m., Washington Hilton & Towers Military
Room
The 1998 American Library Association
Annual Conference will be held June 25-July
1 in Washington D.C. Following is a schedule of intellectual freedom programs and meetings. All ALA members are welcome to attend.
Intellectual Freedom Round Table,
Membership Promotion Committee, 10:00-
11:00 a.m., Washington Hilton & Towers
Bancroft Room
Monday, June 29
Intellectual Freedom Round Table, 8:00-10:00 a.m., Washington Hilton & Towers Caucus
Room
M
E E T I N G S
Thursday, June 25
Freedom to Read Foundation, 8:00 a.m. - 5:30
Committee on Professional Ethics, 11:00 a.m.-12:00 p.m., Washington Hilton &
Towers Map Room p.m., Washington Convention Center Room
29
Friday, June 26
Intellectual Freedom Committee, 8:00 a.m.-
Intellectual Freedom Committee/Association of American Publishers, 5:00 p.m.-6:00 p.m.,
Washington Hilton & Towers Hemisphere
Room
12:30 p.m., Washington Hilton & Towers
Map Room

Tuesday, June 30
Intellectual Freedom Committee, 2:00-5:30
Freedom to Read Foundation News Volume 23, Number 2 Page 5 population. Join the audience discussion of these important ethical issues. p.m., Washington Convention Center Room
21 Monday, June 29, 10:00 a.m.-12:00 noon
Washington Hilton & Towers Georgetown
P
R O G R A M S
Saturday, June 27, 2:00-4:00 p.m.
Washington Hilton & Towers Jefferson E
Room
Privacy Online: Is It Possible? Is It Desirable?
Sponsored by: ALA Intellectual Freedom
Round Table; ALA Intellectual Freedom
Committee; Intellectual Freedom Committees
Room
After CDA: Continuing Attempts to Legislate the Internet
Sponsored by: ALA Intellectual Freedom
Committee; ALA Committee on Legislation
Bruce Ennis, counsel, Freedom to Read of AASL, ACRL, ALSC, ALTA, PLA,
RUSA, and YALSA
Privacy online has become a pivotal issue as more and more information becomes available electronically. Concerns have been expressed over the collection and use of information when it is easily available online. But is
Foundation; and Robert Corn-Revere, author of Rationales & Rationalizations: Regulating the Electronic Media , will describe recent federal, state, and local attempts to legislate the Internet, despite the Supreme Court's 9-0 decision last June overturning the CDA. Also discussing these issues from their experiences on the state level will be Agnes Griffen and complete privacy online possible? Is it even desirable? Solveig Singleton, Vice Chair of
Publications for the Telecommunications and
Electronic Media Practice Group of the
Federalist Society for Law & Public Policy
Studies, and Kathryn Montgomery, President of the Center for Media Education, will address these issues from their unique perspectives.
Sunday, June 28, 2:00-4:00 p.m.
Capitol Hilton Federal Room
Ethics ‘R’ Us
Sponsored by: ALA Committee on
Professional Ethics
The Not-Quite-Ready-For-Prime-Time
Players present three skits followed by discussion of the ethical issues presented.
This year’s topics are academic cooperatives, outsourcing, and library services to the aging
Kenton Oliver.
Monday, June 29, 2:00-4:00 p.m.
Washington Convention Center Room 33
Civil Rights and Civil Liberties: Has the
Internet Changed the Balance?
Sponsored by: ALA Intellectual Freedom
Committee; Association
Anti-Defamation League, and Charles
Levendosky, editorial page editor of the
Casper (WY) Star-Tribune , will present a panel discussion on whether the Internet has made hate speech so prevalent that it must be suppressed prior to or regardless of whether overt, criminal action ensues. of American
Publishers, Freedom to Read Committee
Juan Williams, author of Eyes on the Prize:
America's Civil Rights Years, 1954-1965 ,
Steven Freeman, attorney with the

Freedom to Read Foundation News Volume 23, Number 2 Page 6
Below is the meeting schedule for the
Freedom to Read Foundation in Washington,
D.C. All members of the Freedom to Read
Foundation are invited to attend.
THURSDAY, JUNE 25
8:00 a.m. - 9:00 p.m.
Orientation
Washington Convention Center, Room 29
9:00 p.m. - 12:30 p.m.
Business Meeting
Washington Convention Center, Room 29
2:00 p.m. - 5:30 p.m.
Business Meeting
Washington Convention Center, Room 29
5:30 p.m. - 7:00 p.m.
Reception
Washington Convention Center, Room 26
PRIVACY AND CONFIDENTIALITY
ISSUES by Theresa Chmara
1
You are a librarian approached by a police officer and served with a subpoena, compelling you to produce patron records identifying the names of all patrons who have borrowed books on child-bearing in the last nine months. Farfetched? Impossible?
Unfortunately, it is neither of those things. It happened several years ago. Fortunately, the librarian—with the assistance of the City
Attorney and the support and cooperation of her library board—was able to convince a court that the subpoena should be "quashed," a technical legal term meaning that she did not need to comply with the subpoena request.
What should you do if you are served with a subpoena requesting information about patron records or if you are simply asked to supply such information without a subpoena request?
Whether the request comes from a law enforcement authority or a private individual or group involved in litigation, you should take the same steps. As an initial matter, inform the requester that you cannot comply without consulting with an attorney. A subpoena generally does not require an immediate response, but rather provides a response date some time in the future.
Although the response time may only be days away and a requester may otherwise demand immediate compliance, you should never provide patron borrowing information without consulting an attorney. There are important reasons why you must exercise caution.
First, many states have specific statutes that protect patron borrowing information and designate such information as confidential. In those states, it is a statutory violation to produce identifiable patron information to persons other than library employees engaged in their regular library duties, unless there is a court order compelling the library to produce such information. A subpoena is not a court order. Although it will have a court caption and appear to be an official court document, it is, in fact, issued at the request of an attorney or law enforcement officer and is not reviewed by a judge prior to issuance.
Increasingly, libraries are also maintaining video collections for patron use. It is a violation of federal law to produce information related to borrowing of videos.
The Video Privacy Protection Act prohibits

the disclosure of information about video use.
The federal law applies in every state.
Freedom to Read Foundation News Volume 23, Number 2 Page 7 information regarding books on child bearing, law enforcement officials were conducting a
Second, producing patron borrowing legitimate inquiry into a child abandonment case. There was, however, no reason to information is harmful to First Amendment concerns whether or not a state particularly designates such information as confidential.
Release of patron borrowing information impacts First Amendment concerns. If patrons believed that their reading material would be subject to public scrutiny, the exercise of their First Amendment rights believe that the person who had abandoned a newborn baby had borrowed books from the library on child bearing prior to committing the criminal act. There was every reason to believe that people who had committed no crimes and borrowed books on child bearing would be subjected to interrogation based simply on their choice of reading material. would be chilled. Patrons would refrain from reading material on controversial issues or sensitive topics if they believed that their choice of reading material could become the subject of public exposure and scrutiny. Your library should develop a confidentiality policy concerning patron borrowing information and publicize that policy to your patrons.
Third, the request may be overly broad and burdensome to the resources of the library.
Irrespective of First Amendment concerns and statutory provisions, a subpoena may be quashed if it is unduly burdensome.
Law enforcement officials may be conducting
The law enforcement officials were engaged in a fishing expedition. Recognizing the important First Amendment rights at stake and the failure of the law enforcement officials to demonstrate a compelling need for the information, the court in that case concluded that the librarian was not required to comply with the subpoena.
In some cases, law enforcement officials may have a legitimate need for patron borrowing information. In those cases, the court will issue a "court order" requiring the library to produce such information. A library should consult an attorney even if it receives a court order to determine the propriety of an appeal. legitimate investigations, but the breadth and scope of their requests may trample important
First Amendment rights without a compelling need for the requested information. Only a court can conduct the necessary balancing test to determine if there is a sufficiently compelling need for the information to justify the production of confidential patron borrowing information. The library should be involved in those court proceedings to fully apprise the court of the important First
Amendment rights at stake if disclosure is permitted.
For example, in the case requesting patron
If the library has not been involved in the proceedings before the court, it is likely that the judge would not have had a complete presentation of the important First
Amendment issues. However, the library and librarian would not be violating any statutory protection of patron borrowing information by releasing information pursuant to a court order.
In the absence of a court order requiring a librarian to produce such confidential information, the librarian must maintain the confidentiality of patron borrowing information to protect the First Amendment

1 rights at stake in such a situation and to comply with any applicable state or federal protections of such information. If you are confronted with a request for patron borrowing information, always seek legal advice.
Freedom to Read Foundation News Volume 23, Number 2 Page 8
As stated in her memorandum order, the judge found that Kramerbooks & Afterwards and
Barnes & Noble had “persuasively alleged a chilling effect on their First Amendment rights.” As a result, the Office of the
Theresa Chmara is an attorney and partner in the Washington, D.C. office of Jenner &
Independent Counsel is required to show that it has a “compelling need” for the information sought and that there is a “sufficient connection between the information sought and the grand jury investigation.”
Block.
The judge acknowledged reports by
Kramerbooks that customers, believing records had already been turned over without opposition, had complained “they will no longer shop at the bookstore,” because it had
As this issue of the Freedom to Read revealed their choice of books.
Foundation NEWS goes to press, the final outcome of motions to quash subpoenas of
Independent Counsel Kenneth Starr in the
Arguments in the brief amici curiae advanced to the court by the ALA and the Freedom to
Monica Lewinsky case is not known.
Read Foundation stressed that state legislatures have enacted statutes protecting
Starr is seeking receipts, vouchers and other records of Lewinsky’s purchases over a 29the confidentiality of library use. Those statutes, as well as the federal Video Privacy month period at Kramerbooks & Afterwards, an independent bookstore and cafe in
Protection Act, recognize that the books and other materials one chooses to read or use are fundamentally private in nature.
Washington, D.C. He is seeking similar information from a Barnes & Noble
bookstore. Motions to quash the subpoenas filed in federal court by the bookstores were supported by a brief amici curiae submitted by the ALA, the Freedom to Read Foundation, the American Booksellers Association, the
Association of American Publishers, and other
First Amendment groups.
On April 6, 1998, Chief Judge Norma
Holloway Johnson of the U.S. District Court for the District of Columbia ordered the
Office of the Independent Counsel to present the court with evidence and arguments concerning the subpoenas.
On April 22, 1998, the American Civil
Liberties Union (ACLU), joined by individual publishers of Internet content, as well as the
Freedom to Read Foundation and other First
Amendment organizations, filed American
Civil Liberties Union v. Johnson, a lawsuit charging that a newly enacted New Mexico statute criminalizing online communications violates free speech rights and the Commerce
Clause of the U.S. Constitution. The law, being challenged in the U.S. District Court for the District of New Mexico, makes it a crime to disseminate online “material that is harmful to a minor,” depicting “nudity, sexual intercourse or other sexual conduct.”

Penalties include up to one year in jail, a
$1,000 fine, or both.
Freedom to Read Foundation News Volume 23, Number 2 Page 9
The complaint in the New Mexico challenge is found at http://www.aclu.org/court/acluv
The law, effective July 1, 1998, is nearly identical to the statute in New York struck down last year in American Library johnson_complaint.html
Association v. Pataki. Like the lawsuit brought by the American Library Association, the challenge in New Mexico charges that the statute affects Internet speakers nationwide, and, as a result, violates the Commerce
Clause, which bars states from unduly interfering in the activities of people in other states.
"Like the nation's railways and highways, the
Internet is by nature an instrument of interstate commerce that should not be burdened by inconsistent state laws," stated Ann Beeson, the lead ACLU attorney. "New Mexico's law violates the Commerce Clause because it would require an Oklahoman who posts a web page or a message to abide by New Mexico standards, even if no one from New Mexico ever sees or reads the post."
The New Mexico statute defines as illegal
“use of a computer communications system . .
. to knowingly and intentionally initiate or engage in communication with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.” This use of computers is distinguished by the statute from
“child luring,” which is not being challenged.
The law struck down in American Library
Association v. Pataki had made illegal
“disseminating indecent material to minors.”
The New York statute defined that conduct as
“[k]nowing the character and content of [a] communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [a person] intentionally uses any computer communication system . . . to initiate or engage in such communication with a person who is a minor.”

Freedom to Read Foundation News Volume 23, Number 2 Page 10
National Endowment for the Arts v. Finley, the constitutional challenge of a statute requiring the
National Endowment for the Arts to take into consideration “general standards of decency and respect for diverse beliefs and values of the American public” in determining grant applications (see
“Freedom to Read Foundation Report to Council,” in Freedom to Read Foundation
NEWS , Volume
23, Number 1) was argued on March 31, 1998.
The application for review in Paladin Enterprises, Inc. v. Rice, the Hit Man publisher liability case, was denied on April 20, 1998. That lets stand the November 10, 1997, decision of the U.S. Court of
Appeals for the Fourth Circuit, which refused to apply the First Amendment to protect the publisher of the step-by-step assassination manual from liability for a criminal’s use of the work (see “Freedom to Read Foundation Report to Council,” in Freedom to Read Foundation
NEWS , Volume 23, Number
1).
Applications for review by the Supreme Court were recently filed in the following cases:
Zeran v. America Online, Inc., a case involving immunity from third-party-liability granted by the
CDA to online service providers, filed on March 9, 1998.
General Media Communications, Inc. v. Cohen, the constitutional challenge of the Military Honor and Decency Act of 1996 (see “Soldiers Can’t Buy
Playboy at the PX,” in Freedom to Read
Foundation NEWS , Volume 23, Number 1), filed on March 16, 1998.